92 Decision Citation: BVA 92-23108
Y92
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 92-03 095 ) DATE
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THE ISSUE
Entitlement to an increased evaluation for post-traumatic
stress disorder (PTSD), rated as 10 percent disabling, for
accrued benefits purposes.
ATTORNEY FOR THE BOARD
Richard V. Chamberlain, Counsel
INTRODUCTION
The veteran had active service from November 1967 to October
1969.
The veteran's appeal from the denial of his claim for a
rating in excess of 10 percent for PTSD was received at the
Board of Veterans' Appeals (Board) in March 1991. While the
case was at the Board, the veteran died in April 1991. In
May 1991, the Board returned to the case to the Department
of Veterans Affairs (VA) Regional Office (RO) in Little
Rock, Arkansas, with correspondence explaining the reason
for the return of the veteran's appeal. The veteran's
attorney was sent a copy of this correspondence.
In August 1991, the appellant, the veteran's widow, requested
a rating in excess of 10 percent for the veteran's PTSD for
accrued benefits purposes. In October 1991, the RO notified
the appellant of the denial of this claim in a supplemental
statement of the case. Also, in October 1991, the veteran's
attorney advised the RO that he would not be representing
the appellant. In March 1992, the case was received and
docketed at the Board. The appellant acts as her own
representative in this matter.
In a letter received at the Board in May 1992, the appellant
appears to be disagreeing with the RO's September 1991 denial
of her claim for service connection for the cause of her
husband's death. This issue is referred to the RO for
appropriate action.
REMAND
The appellant contends that the veteran's PTSD was more
severe than evaluated at the time of his death. She requests
a rating in excess of 10 percent for accrued benefits
purposes.
In the correspondence of August 1991, the appellant requested
a personal hearing at the RO. We note that the RO did not
address or otherwise act on this request. Additionally, we
find no formal rating decision in the record denying the
appellant's claim although a statement of the case on this
issue was furnished to the appellant. In our opinion, a
remand of this case to the RO for additional action is
required prior to appellate consideration of the claim in
order to ensure due process of law. 38 C.F.R. § 3.103(c).
In view of the above, the case is REMANDED to the RO for the
following actions:
1. The RO should schedule the appellant
for a personal hearing.
2. After the above action, the RO should
review the testimony presented at the
hearing and prepare a formal rating
decision determining the appellant's
entitlement to the benefit sought.
If the decision is still adverse to the appellant, a
supplemental statement of the case should be furnished to
her. She should be afforded an opportunity to respond
before the case is returned to the Board for further
appellate consideration.
No action by the appellant is required until she receives
further notice.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
*
(MEMBER TEMPORARILY ABSENT) J. F. GOUGH
STEPHEN A. JONES
*38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of
Veterans' Appeals Section, upon direction of the Chairman of
the Board, to proceed with the transaction of business
without awaiting assignment of an additional Member to the
Section when the Section is composed of fewer than three
Members due to absence of a Member, vacancy on the Board or
inability of the Member assigned to the Section to serve on
the panel. The Chairman has directed that the Section
proceed with the transaction of business, including the
issuance of decisions, without awaiting the assignment of a
third Member.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United
States Court of Veterans Appeals. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal. 57 Fed.
Reg. 4126 (1992) (to be codified as 38 C.F.R. § 20.1100(b)).